One of the more interesting television shows out there now is the Emmy award-winning "The Amazing Race". At the start of the show, the host shouts, "Ready, Set, Go!" and off the contestants go on a race around the world places as yet unknown.

That, in essence, is what 2009 is shaping up to be in employment law: a race to change things as fast as you can with the final destination (and pitstops) as yet unknown.

This week, for example, two employment-law bills are on the fast-track for passage in the U.S. House, but it’s being done so quickly that you may have a tough time catching up.

Several Washington, D.C.- based blogs (including the Washington Labor & Employment Wire) are reporting this site that two pay-related bills are on the fast-track for consideration by Congress, perhaps in an effort to get them on to President-Elect Obama’s desk by the time inauguration rolls around.

…House Majority Leader Steny Hoyer (D-Md.) announced that two employment-related bills will reach the House floor later this week. Both the Paycheck Fairness Act (H.R. 1338) and the Lilly Ledbetter Fair Pay Act (H.R. 2831) were introduced and easily passed the House during the last Congress, but stalled in the Senate due primarily to Republican opposition and a presidential veto threat. It is noteworthy that both bills are being sent directly to the House floor instead of being vetted through the committee process….

The Paycheck Fairness Act [version that]… will reach the House floor this week aims to do the following:

Amend the Fair Labor Standards Act (FLSA) to allow victims of pay discrimination to potentially recover more remedies than those currently provided in the FLSA

Require employers to disclose job categories and pay scales as needed to enforce the law

Prevent employers from relying on the “factor other than sex” affirmative defense in wage discrimination cases; instead, employers must additionally prove that such factor is “job related” and serves a “legitimate business purpose.” An employee could rebut this claim by showing that an “alternative employment practice” exists that could achieve the same business purpose

Entitle employees to unlimited punitive and compensatory damages, regardless of whether the wage discrimination was intentional.

You can view some of my earlier posts about the Paycheck Fairness Act starting here. As I said then, this bill will re-emphasize to employers the importance of documenting pay decisions.

On the Lilly Ledbetter bill, I summarized it and discussed the issues related to it in posts such as this one. My comments then are fairly relevant to today as well:

The issue in Ledbetter case was, in many ways, a technical question of how far back an employee should be able to go to challenge past pay practices — in other words, about deadlines and "statute of limitations". The Supreme Court said that the 180-day deadline found in the statute should apply. Should the statute of limitations remain at 180 days? 1 year? 2 years? 5 years? 20 years? I don’t suggest to know what the right answer is. Ultimately, the answer to that question will help shape the Paycheck Fairness Act bill’s final outcome and it should be the one that the politicians focus on. Employers would certainly like shorter statute of limitations and have good arguments that because supervisors leave, short statute of limitations prevent stale claims from being brought. But employees have decent arguments that a longer statute of limitations should apply because discriminatory pay practices are often learned of only after they occur.

For employers, the debate over the Paycheck Fairness Act is one worth paying attention to because the real-world consequence of the bill’s passage (whether now or next year) will be to increase the importance of documenting pay practices and to give employers another reason to preserve such documents for future litigation.

Hopefully, as the bill progresses, we’ll see more debate on the pros and cons on having longer deadlines to file suits.

With the bills on the fast-track, i doubt we’ll see much substantive debate on the bills, which is unfortunate. In the election, the concept of "change" was thrown about. This week is the first real sign that, for employment law issues, change is here.

The Wall St. Journal is reporting this morning that the Employee Free Choice Act bill is not likely to be among the pieces of legislation to be considered in the new administration’s first 100 days: Unions likely won’t see action…

About Daniel Schwartz

Trusted advisor. Experienced employment law attorney. Bar leader. Award-winning author. Noted Speaker. "Legal Rebel". All can be said to be apt descriptions of Daniel Schwartz, partner at Shipman & Goodwin LLP. More +

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More than anything else, employment law is about relationships. Where other areas of of the law seemingly exist more on sheets of paper than in reality, employment law depends heavily on the interpersonal relationships between employers and employees. The rules governing these relationships are limitless, but it is my job as an employment lawyer to take complicated (and confusing) laws and break them into understandable concepts. That’s what I do on this publication, and that’s what I do in my practice everyday. More +

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